Sudarshan Kochar & Ors. vs C.B.I.
1999 Latest Caselaw 71 Del

JUDGMENT

J.B. Goel, J.

1. This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure (for short "the Code") filed by Smt. Sudarshan Kochar and Shri Naresh Kumar, wife and son respectively of late Shri C.L. Kochar. Their similar application was rejected by the learned Addl. Sessions Judge.

2. On the basis of source information that Shri S.J.S. Chawla, Branch Manager, Punjab & Sind Bank, Chandni Chowk, Delhi in conspiracy with Smt. Sudarshan Kochar and Naresh Kochar proprietor of M/s. Narain Dass Agency had caused loss to the Bank to the extent of Rs. 22 lakhs by fraudulent means, a Case No. RCDA11998A0017 under Section 120B read with Sections 467, 468, 471 of the Indian Penal Code and Section 13(1)(b) read with Section 13(2) of the Prevention of Corruption Act was registered and investigation taken up.

3. During investigation made it has been noticed that late Shri C.L. Kochar, husband and father respectively of petitioner Nos. 1 and 2 was doing business under the name and style of "M/s. Narain Dass Agency" and had Current Account No. 140 with Punjab & Sind Bank, Chandni Chowk Branch, Delhi and in that account he was availing cash credit facility to the extent of Rs. 10 lakhs. The said Shri C.L. Kochar died on 9.2.1992 and on the request of his wife Smt. Sudershan Kochar, petitioner, the said bank limit and his liabilities therein were transferred in her name on 9.2.1993. Smt. Kochar had also opened Current Account No.1042 with the said Bank.

 4. Towards the end of the year 1994 Smt. Kochar as proprietor of Narain Dass Agency had an outstanding credit liability to the extent of Rs. 12,82,850/ as against the sanctioned limit of Rs. 10 lakhs. Thereafter Shri S.J.S. Chawla, the then Senior Manager and other officers of that Bank had discounted following thirteen cheques and thereby further allowed her to withdraw the amounts in excess of the sanctioned credit facility.  S.   Name of Drawer      Cheque.   Bank on which  Amt. (Rs.)
No.  and date            No.       drawn
1.   Narain Dass         264932/   United Bank of      1,63,000/- 
     Agencies            12.12.94  India, Ghaziabad
     (South) through               A/c 1148
     Mr. Naresh Kochar
2.   - do -              264933/   - do -              1,63,000/-
                         12.12.94
3.   - do -              264934/   - do -               92,000/-
                         12.12.94
4.   - do -              264936/   - do -               64,200/-
                         12.12.94
5.   - do -              264938/   - do -              2,66,600/-
                         12.1.95
6.   - do -              264996/   - do -              2,66,600/-
                         12.1.95
7.   Raj Kumar           056091/   Punjab National     2,45,000/-
     (for N.B. Pharma)   20.1.95   Bank, Sonepat
                                   A/c 1015
8.   - do -              056092/   - do -              2,88,000/-
                         13.2.95
9.   - do -              056094/   - do -              3,00,000/-
                         4.5.95
10.  Shiv Durga          012872/   Punjab National     1,00,000/-
     Medicines           30.9.95   Bank, Mall Road
                                   A/c 22066
11.  - do -              012873/   - do -              1,15,000/-
                         30.9.95
12.  - do -              012874/   - do -              1,26,000/-
                         30.9.95
13.  Suman Kochar        721228/   Punjab National     1,70,000/-
                         11.10.95  Bank, Mall Road
                                   A/c 22266

 

5. These cheques were discounted and the credit against these cheques was allowed to her in excess of the permissible limit and ignoring that the cheques on being presented to the drawee banks were dishonoured, 11 of the cheques were dishonoured on account of "insufficient funds" and two on account of "Title differ". In this manner the officers had accommodated the petitioner by purchasing these cheques and thereby availing further cash credit of Rs. 23,59,300/ apparently by misusing their official position and unauthorisedly.

6. It is alleged that this has been done as a result of conspiracy between S.J.S. Chawla and other staff of the Bank, the account holder and the drawers of these bogus cheques and thereby they have defrauded the Bank and wrongful benefit was given to the petitioneraccount holder. Drawers of these cheques are relations of the petitioners or issued at their instance. They knew that they had no funds to honour these cheques.

7. Learned Counsel for the petitioners has contended that the petitioners had furnished valuable and adequate security in consideration of the credit facilities availed by her. The petitioners have paid more than Rs. 8 lakhs during these proceedings, there is no intention not to pay nor there was any intention to cheat and defraud the Bank; also that this is a civil liability and the Bank has already instituted proceedings for recovery of their dues; that the petitioners have already been interrogated and they will further join the investigation as and when required and as such their release on bail will cause no prejudice to the investigation.

8. Learned Counsel for the CBI has strongly opposed the bail application. He has contended that prima facie there is material to show that the petitioners in conspiracy with several other persons and bank staff have defrauded the Bank of huge amounts over Rs. 23 lakhs, 13 bogus cheques were drawn and thereby siphoned off bank funds. These cheques were drawn on the bank accounts where there were no funds and there was no intention of these cheques being honoured. The case is at investigation stage and in view of grave and serious nature of the offence there is no justification to grant anticipatory bail and it will prejudice and thwart proper investigation.

9. In the case of Pokar Ram Vs. State of Rajasthan, AIR 1985 SC 969, it has been stated that: "Relevant considerations governing the Court's decision in grant ing anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is ar rested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher Court and bail is sought during the pendency of the appeal."

10. Again in State Represented by CBI Vs. Anil Sharma, , in a case for anticipatory bail it was observed that in such a case an effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a prearrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. It was further observed that consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest.

11. Same legal position has been reemphasised in The State of Andhra Pradesh Vs. Bimal Krishna Kundu & Anr., , where also it has been observed as under: "... It is disquieting that implications of arming respondents, when they are pitted against this sort of allegations involved well orchestrated conspiracy, with a prearrest bail order, though subject to some conditions, have not been taken into account by the learned Single Judge. We have absolutely no doubt that if respondents are equipped with such an order before they are interrogated by the police it would greatly harm the investi gation and would impede the prospects of unearthing all the ramifications involved in the conspiracy. Public interest also would suffer as a consequence ...."

12. The material collected prima facie show that the bank staff had allowed the petitioners to avail credit facilities to which they were not entitled and heavily in excess of the sanctioned limit and when the facility had already been availed in excess, 13 cheques were accepted, discounted and credit allowed without noticing that the cheques had already been dishonoured on account of insufficient funds or other reasons, two of those cheques were not even drawn by the account holder. Funds were neither available nor were arranged. The bank staff apparently have acted in misuse of power and in conspiracy and collusion with the petitioners.This conspiracy needs thorough investigation as public funds are involved.

13. Simply because the Bank have failed a civil suit to realise its dues, it does not show that it is only a civil liability. For realising the debts the Bank has no alternative but to institute civil proceedings. Besides, the civil liability there appears to be strong case of conspiracy there by defrauding the Bank of public funds.

14. In these circumstances it will not be proper to arm the petitioners with anticipatory bail. This is not a fit case for grant of anticipatory bail and this petition is accordingly dismissed. Nothing stated herein will be deemed to be expression of opinion on merit of the controversy.